Justice for All Without the State

Writing on The American Conservative website, Daniel McCarthy argues in “Anarcho-Distributism” that the so-called state of nature that libertarians discuss would not resemble what a Stateless society would look like if the State collapsed. He argues that reasoning from the state of nature may not be the correct starting point for conceptualizing or building an alternative political structure. He therefore claims that anarcho-capitalist arguments about how private defense agencies, protection agencies, or dispute resolution organizations work assume a certain level of equality which would not be present in reality and that these institutions of justice would thus favor the rich. I argue in this article that the freemarketcan provide justice without disproportionately favoring the rich.

Reasoning from the so-called state of nature is useful for making theoretical arguments about what is justified. To libertarians and other righteous people, justification matters and we need to at least be conceptually capable of justification. That said, of course we also need to consider what norms are assumed in society as it has developed. For example, walking up to someone’s door and ringing their doorbell is not normally considered trespassing. It is also worth noting that there are many libertarians consider the wisdom of common law on other evolved law.

No amount of purely libertarian legal theorizing that is disconnected from socially accepted norms and practices can explain why when you walk into a restaurant and order a meal, you have to pay for it, despite signing no contract.

Analyzing the state of nature, even Robinson Crusoe examples, can help us greatly with some legal questions, including questions about intellectual property. For example, lets say that Bob and Jane are living on an island. They both catch fish to eat. Lets say that Jane discovers a new and more efficient way to catch fish, perhaps a new technique or some kind of improved tool. Bob observes Jane doing this and copies her. There is absolutely nothing wrong with this. Jane has no right to prevent Bob from using his body and property to achieve his goals, even if he copies her techniques. This is a simple example, yet it cuts to the heart of the matter regarding patents.1

Of course, while the above type of reasoning is useful, we cannot reason our way up from nothing to a completely formed legal system. The much-maligned armchair theorizing is sometimes useful to analyze the validity of existing law, but it cannot be used by itself generate an entire legal structure de novo. The libertarian legal theorist must account for local customs, traditions, circumstances, and generally accepted norms and understandings. Libertarian legal theorizing can tell us that consent is required for transactions and other interactions, but it cannot tell us precisely what constitutes consent in various cases, nor can mechanical rules be laid out to rigidly determine this (although rules of thumb are useful).

No amount of purely libertarian legal theorizing that is disconnected from socially accepted norms and practices can explain why when you walk into a restaurant and order a meal, you have to pay for it, despite signing no contract. Nor can theorizing alone even explain why contracts or the words “I accept” sometimes constitute consent, but other times do not. We have to draw upon other disciplines. We recognize that — no matter how this situation historically evolved — walking into a restaurant and ordering a meal does constitute consent to pay for that meal. We recognize this by the same way that we recognize other forms of consent — by common sense and understanding of custom.

Pushing the Button

We always seek to abolish aggression, to abolish State intervention, even if that exposes other problems — which are themselves caused by other Statist interventions.

What Rothbard actually said was that a real libertarian would push a button to instantaneously abolish all invasion of liberty. Because no button to end aggression exists, this is a hypothetical question regarding one’s mental state. The point of it is to influence our thinking on various issues. The point is that we should always seek to abolish aggression, to abolish State intervention, even if that exposes other problems — which are themselves caused by other Statist interventions. This related to Ludwig von Mises’ observation that interventionism leads to more interventionism: problems caused by State intervention lead to the alleged justification for more intervention. Libertarians must not only boldly oppose this, but also agitate for movement in the other direction.

Returning to the issue of the State, most libertarians recognize that even if the State were torn down tomorrow, it would be rebuilt rather quickly, one way or another, quite possibly in a more despotic form. So long as there are enough people at least willing to tacitly approve of the State and tolerate aggression against them, both in their deeds and in their minds, States will continue to exist. Were the State to collapse, while the masses of the population might not work towards rebuilding it, they would readily tolerate others — the “elite” — doing this.3 As is normally the case, there is no “quick fix”.

Walter Block’s Revolutionary Tribunals

Regarding Professor Walter Block‘s proposed trials4 for former Statists in a free society — which would likely have restitution, and possibly retribution-based elements — I do not think that they are necessarily a recipe for discord and strife. People like Donald Trump, who has used eminent domain to help enrich himself5 ought not to be allowed to keep ill-gotten gains. Serious attempts to trace property back to original owners would not normally be made; however, in cases where proof could be provided and this could be done, claimants would come forth to state their cases. Most likely, these trials would work via the homesteading of claims by first-comers, perhaps by insurance companies providing private dispute resolution services.

These trials would not be arbitrary, but would be brought by specific claimants, either specific victims, or defense insurance companies trying to improve market standing, and indirectly acting on behalf of many victims. The benefits might be seen in terms of lower premiums, which insurance companies homesteading claims against Statists could afford to offer to gain more customers. Another way that this might work is through outlawry trials. Offering insurance for private protection is a a business, and companies cannot afford to insure individuals who are incredibly high risks. Individuals who might be the recipients of much hostility and attempted repossession in a free market — i.e., prominent Statists — would likely have difficulty finding protection agencies willing to protect them. Evidence-based trials could be held at the request of these individuals, in which case their guilt may or may not be proven beyond a reasonable doubt.

Despite my theoretical support for Walter Block’s tribunals of Statists, by the time we have a truly free market, a truly free world, it is unclear whether or not there will be many Statists left to prosecute.

Would Justice Favor Those with the Most Wealth?

Summarily, the wealthy criminal attempting to violate the law at will would, in the very best case, find every conceivable interaction with others much more difficult and expensive and he would rapidly become less wealthy.

Daniel McCarthy argues that in a Stateless society, justice would favor those with the most wealth, and he argues that there would be just as inegalitarian a distribution of wealth in a free market as there is today. I have several responses to this argument.

…thousands of people…were murdered because they happened to have political or religious beliefs that the (socialist) Anarchists did not agree with.

When faced with voluntary decisions of free people in a Stateless society, when these decisions affirm a desire for private property rights in objects and land, in consumer and capital goods; the anarcho- socialist, syndicalist, communitarian, communist, neo-Georgist, distributist, etc must either accept those decisions — hence at least tacitly accept the legitimacy of capitalism and private property — or become a Statist and attempt to enforce his brand of socialism.)) Surely, these places did not have basically egalitarian distributions of wealth, and may very well have been more polarized in many ways. Third, almost every market that I can think of caters not just to the rich, but also to the middle class and even the poor. Consider computers, cars, houses, books, food, financial services, restaurants, etc.

Fourth and finally, the argument may be made that justice is different, as it concerns disputes between people, yet this argument is not entirely convincing, partly because of the historical examples to the contrary, but also because even the wealthy in today’s Statist society do not get away with outright theft or crime as is recognized by the masses. The wealthy usually attempt to privilege themselves with the State through systematic rules, not through outright request of special exemptions. Every politically elite group needs at least the tacit approval of those ruled over, no matter how brutal they are. This applies even in the case of dictators who may order soldiers to slaughter protesting civilians, as the dictator needs the soldiers to be willing to follow his orders.

One ought to consider how a private defense agency and associated individuals who protected rich criminals would be perceived in a free market. Their reputation would be ruined, they would not be able to procure clients, they would not be recognized by other dispute resolution organizations, they would be boycotted, etc. Competing private defense agencies would have incentives to cooperate to eliminate these rogue organizations. Furthermore, other wealthy individuals would have incentives to deal with rich criminals. As with the middle class and even poor people, most rich people are good and lawful. Most of these rich people are rich because they provide valuable services or goods that the middle class desire; hence, they have incentive to deal with rich criminals. Rich lawful individuals would also be aware that they too could be victimized by rich criminals.

One more consideration is that life would be difficult for those attempting to circumvent legal norms in a free society and for their protection agencies. Their protection agencies would incur higher costs. And what happens when the wealthy law-breaking clients of these protection agencies have conflicts with one another? Surely they cannot trust their admittedly corrupt protection agencies to provide a just resolution. And seeing as how these corrupt protection agencies would realize they are protecting clients with limited alternatives, would they not charge extremely high premiums? Seeing as how these individuals would be considered outlaws by civilized people, they would also have to pay for bodyguards.

Summarily, the wealthy criminal attempting to violate the law at will would, in the very best case, find every conceivable interaction with others much more difficult and expensive and he would rapidly become less wealthy. He might also find himself considered an outlaw by most (a technical obstacle) and hence a target.

What Libertarians are Fighting For and Against

US law is positive law and for practical purposes of enforcement, the US Constitution means whatevercourts say it means.

It is worth remembering what libertarians are fighting for: liberty, private property rights, the right to one’s body, prosperity, peace, and capitalism. It is also worth remembering what we are fighting against. All of the decrees of the State are ultimately backed by lethal force and necessarily so. If you disobey any State law, edict, executive order, or regulation — no matter how trivial — the police or perhaps soldiers will kill you if necessary. In the United States, at least, they will usually try to apprehend you first. However, if you resist apprehension, and in defending your right to your body use force approaching lethal force, you will be murdered.

An example that comes to mind which fortunately did not end in that is the case of Edward and Elaine Brown. They barricaded themselves into their house and refused to pay Federal income taxes. Although they had stockpiled weapons and food, they were eventually arrested and sent to prison. They were sentenced to 35 and 37 years in prison and will both be 102 years old when released, assuming they survive that long. Tragically, they had the kooky idea that legal arguments regarding the correct interpretation of what the Constitution authorized would acquit them; these kinds of defenses against tax evasion always have and always will fail.11 US law is positive law and for practical purposes of enforcement, the US Constitution means whatever courts say it means.12,13 For citizens, what matters is not what the US Constitution actually seems to mean as written, but what courts say it means, and anticipating the process by which US courts will come to various conclusions.14

In the case of Edward and Elaine Brown, they were not murdered for defending themselves because they did not escalate their defense to the use of deadly force. They were, however, imprisoned. For people who are not hardened criminals, prison is effectively torture. Edward Brown claims to have been tortured in prison.15 I should also note that while using deadly force to defend yourself against State officials will result in your death, it is not a necessary condition and only condition for this to happen: Many of Gandhi’s pacifist protesters were murdered by British soldiers. It thus ought to be clear that any resistance against States, even if entirely peaceful, can be met with lethal force.

Moving Towards a Completely Free World

It is extremely unlikely that we will ever simply go from having a State to not having a State while retaining the same configurations of property-title ownership. Either there will be complete collapse, and hence ruin of many of the rich, or there will be a gradual decline of States both through political change and secessionist movements. Professor Hoppe talks about this when discussing mass decentralized secession. For the prospects of a free world to have any hope, libertarian intellectual elites must work towards a paradigm shift in public opinion about the State and its legitimacy. When enough people in various regions are sufficiently dissatisfied with the State and of the opinion that the free market can better provide for their needs, mass decentralized small secessionist movements can take place. These kinds of decentralized secessionist movements would be more difficult to prevent than was, for example, the attempted secession of the Southern states from the US during the Civil War.16

Where does this all begin? Freedom begins in your mind. It begins with the realization that taxes constitute robbery, that inflation constitutes a kind of theft or fraud. It begins with the realization that those in the government who would take your wealth are no better than criminals who would rob you at gun-point: simply because one calls something “collecting taxes” does not mean it is fundamentally any different from robbery. So we treat governments and their regulations as mere technical obstacles, not moral obstacles. If we pay taxes, we do so out of mere prudence, not out of any ridiculous feeling of moral obligation. Regarding prudence, we should of course keep in mind the above-mentioned example of the Browns and their fate. Libertarians have a long way to go and a lot of work to do in changing people’s minds.

~*~

David J. Heinrich is a libertarian anarcho-capitalist, pro-punishment pacifist, photographer, and tennis-lover.

Endnotes

For an excellent paper rebutting intellectual property, see Kinsella, Stephan N., “Against Intellectual Property,” Journal of Libertarian Studies 15, no. 2 (Spring 2001): 1-53. This paper is also an excellent reference for other papers on intellectual property and is worth reading for the footnotes alone! [↩]

It might be more technically correct to say that US law means whatever courts say provided that officers and soldiers are willing to enforce their decisions; in the ultimate analysis, US law is whatever is enforced via coercive force. It is also worth noting that the same would apply in a free society. In one meaning of the word, law is essentially what is enforced. However, in a free society, the forces acting on the path of the law would be different. [↩]

Although Oliver W. Holmes’ prediction theory of law fell into disrepute after H.L.A. Hart’s attack on it, rehabilitations have been attempted, and it remains a useful framework for citizens to analyze the law within, when deciding upon actions. See:
Oliver Wendell, Jr. Holmes, “The Path of the Law,” Harvard Law Review 10 (1897): 457, 469.
Wikipedia, “Prediction theory of law,” Encyclopedia, Wikipedia.
Wikipedia, “Legal realism,” Encyclopedia, Wikipedia.
H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford University Press, USA). [↩]

This should disillusion people who think that legal contortions can free them from Statism. [↩]

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